Previous accounts of native title have tended to conceive of recognition as occurring in an overlap between different bodies of law, or as an interaction between substantially distinct Aboriginal and settler societies. Such accounts tend to conceive of native title relatively narrowly, in terms of a legal process focused on the articulation of systems rather than as an event taking place within the daily lives of claimants, respondents and other interested parties.

If we place native title within its broader social context, we are able to include within our analyses not only the formal aspects of recognition—those driven by the operation of the Native Title Act—but also other kinds of recognition. These other kinds of recognition occur elsewhere in the complex zone of interactions between Aborigines and settler Australians. Within this zone, the analysis of native title (and in particular its social effects) becomes centred on questions concerning coexistence. Indeed, viewed from within this zone, coexistence is revealed as existing prior to a native title claim, and as the foundation upon which any act of recognition, formal or otherwise, is able to occur.

This prior coexistence takes various forms. At its most diffuse it exists at the level of the Australian nation-state, which provides both the limit and the necessary social and legal framework for native title per se. But the coexistence that underpins native title as a total social fact also occurs in more limited and socially substantial forms. Perhaps most importantly, this prior coexistence occurs in the form of the local social field or community that is concerned with a particular area subject to a native title claim.

In using the term ‘community’, I am mindful of the problems of its suggestion of a homogenous character or substantial identity to those Aboriginal people who live together in a particular locality.^[7] Regarding the social effects of native title, however, it is useful to consider community in the sense identified by Wagner (1967: 186, 207-17, 1988: 44-45, 59). For Wagner, communities are not pre-existing social entities sharing a single identity. Rather, communities are continually emergent in the social interactions between those living alongside and interacting with one another. The ‘concretivity’ of such communities ‘is that of locale and event rather than continuative substance or identity’. For this reason ‘they are not so much the objects as the subjects’ of ongoing local histories (Wagner 1988: 59).

In central Cape York Peninsula—and particularly in Coen, the region’s main township—this usefulness of this notion of community is not limited to those Aboriginal people who live together in the town and in ‘outstation’ camps in the township’s hinterland. Community of this kind also inheres amongst the wider regional population, both Aborigines and settlers, whose interactions continue to lie at the heart of regional sociality. In this region—as elsewhere in Northern Australia—the communities whose coexistence is the basis of the social effects of native title include many, if not all, of those Aborigines and ‘whitefellas’ who live within or close to the area subject to a native title claim.^[8]

The work of the French philosopher Jean-Luc Nancy (e.g. 1997, 2000) clarifies the importance of the prior coexistence of such communities in relation to the social effects of native title. For Nancy, coexistence is the fundamental ‘groundform’ of all human life-worlds. What consociates have in common is not merely more or less specific ways of thinking, being and acting, possessions or property rights and the like which tie together a series of individuals. Coexistence—‘being-with’ others—is not merely a secondary aspect of human existence; rather, coexistence is the fundamental condition of existence in general. It names the way in which we can only meaningfully exist through our ongoing relations with others; the character of our existence depends on the community that we share with our consociates. This shared situation provides ‘the capacity in and by which something, “some-things’” and “some-ones” come to “be”’ (Nancy and Ten Kate 2004). Within community the enactment of recognition, on the basis of coexistence, thus generates both particular social effects (e.g. ‘rights and interests’ and their ‘enjoyment’) as well as one’s sense of selfhood, the latter being at least partly constituted in relation to the former. As such, coexistence might be understood as the ‘groundform’ of recognition where native title is understood as a total social fact.

Another name for this fundamental form of coexistence is ‘the inter-’ (Nancy and Ten Kate 2004). Given that Northern Australian life-worlds are now self-evidently constituted through ‘the co-presence of people with different ideas and forms of action’ (Merlan 2005: 169),^[9] it is perhaps not surprising that anthropologists working in that region—as well as philosophers like Nancy—have placed the ‘inter-’ at the heart of their analyses. Merlan (2005: 169), for example, has drawn on various theories of intersubjectivity, which ‘do not begin with a notion of a pre-existing “subject” … [but rather] from a notion of interrelationship and its specific moments of interaction’ to model the character of coexistence in the Katherine region of Australia’s Northern Territory. For Merlan, these accounts of intersubjectivity can usefully be the basis of understanding the ‘intercultural’ situations that now predominate across much of Northern Australia:

Even where social life depends on sharply demarcated social boundaries—between Aborigines and whites in most North Australian towns for instance—one can nonetheless perceive such a substantive interrelationship ‘of categories, understandings, modes of practical action’ (Merlan 2005: 170). Moreover, rather than being pre-given, the character of such interrelationships necessarily means that Aboriginal categories, understandings and modes of action are reproduced and reshaped ‘in interaction, interrelationship and event—sometimes in engagement with whites’ (Merlan 2005: 170).^[10] Here Merlan’s account of the ‘inter-’ points towards the iterative character of all meanings, norms, and practices, which are continually reshaped in interactions between Aborigines and settlers as well as in interactions among Aborigines.

In Coen, for example, the interactions between Aborigines and local whites have been transformative of the life-world of the wider Coen community, despite ongoing social distinctions between Aborigines and whitefellas. Such transformations were particularly marked during the period of majority employment of Aboriginal people on the region’s cattle stations. On these stations the formal distinctions between Aborigines and whites were often weakened, resulting in intense forms of consociality between them (see also Redmond 2005). The day-to-day patterns of station consociality and the mutual exposure of Aborigines and whites to each others’ ways of dealing with the region’s landscape resulted in the reshaping of whites’ and Aborigines’ forms of knowledge and practice relating to the landscape and to each other (Smith 2002, 2003). But a decline of Aboriginal employment on stations from the late 1960s and early 1970s onwards has since increased the sense of social distance between most Aborigines and settlers until recently, when the establishment of a local Aboriginal Corporation in Coen and advent of land claims and native title have led to more substantial interactions between Aboriginal people and the settler population in the central Peninsula (Smith 2000a).

On first glance, Merlan’s ‘inter-’ is of a somewhat different order to Nancy’s, dealing with particular instances of social and cultural life, rather than coexistence as a more abstract groundform of sociality. Nancy, however, argues that this ‘groundform’ only ever exists within the various enactments of social life. As such, Nancy’s ‘inter-’, like Merlan’s, inheres in the ongoing social articulation of categories, understandings and modes of practical action. If the ‘inter-’ is a groundform, it does not sit outside of everyday sociality; rather, it is that sociality, coexistence or community in each of its ongoing manifestations. The ‘inter-’ exists only in the interactions of consociates that ensure that there is a continually ‘open’ character to local life-worlds, even as they draw upon and reiterate established socio-cultural forms. This open character means that the possibility of change and creativity—Patton’s ‘deterritorialisation’—inheres continually in social life, providing it with its vitality.

Placing the ‘inter-’ at the heart of the socio-cultural field thus reveals all cultural production^[11] as inherently intercultural. Whilst every social interaction depends on previously established meanings and norms, these are simultaneously reshaped—either subtly or radically—in the course of all interactions. This is not to say, of course, that meanings and norms are not maintained over time, nor that cultural differences and incommensurability are not more evident in some interactions than in others. Von Sturmer’s (1984) discussion of the ‘Aboriginal domain’, for instance, makes it clear that distinctly Aboriginal styles of thought and action have persisted across Northern Australia despite the encapsulation and saturation of Aboriginal populations by ‘mainstream’ Australian society. The domains in which these styles of thought and action persist are maintained through intense, ongoing interactions among Aborigines at a remove from non-Indigenous consociates and local manifestations of the ‘mainstream’. Further, even where long-term interactions between whites and Aborigines have taken place for generations, it is not uncommon for incommensurable understandings and actions to predominate. Despite a lifelong history of co-residence by Aborigines and whites in Coen, it is not uncommon for misinterpretation and incommensurability, rather than shared meanings and norms, to predominate in their interactions.

The ongoing misunderstandings and incommensurability between whites and Aborigines suggests that whilst the coexistence of local communities depends on particular perceptions or understandings about consociates—that is, on forms of recognition—such recognition is not necessarily either accurate or affirmative in character. Coexistence in central Cape York Peninsula has long involved ‘recognition’ in the form of racist stereotypes of local Aboriginal people. Local whites have variously seen Aborigines as savages, backwards, primitive, in need of supervision and guidance, as not owning land and as an available source of indentured labour for the region’s cattle stations. At the same time, despite the continuing existence of such stereotypes, recognition has also taken more positive forms, for example in the ongoing close social bonds that have developed between local Aborigines and white pastoralists.^[12] Even as coexistence depends on recognition, recognition—whether affirmative or negative in character—always falls short of the underlying ‘openness’ of coexistence. If the recognition enacted in the formal determination of native title is particularly ossifying and transformative of Aboriginal identities (Smith 2003; see also Glaskin, Chapter 3), its actions are nonetheless illustrative of the effects of recognition more generally.

Any act of recognition, legalistic or otherwise, reduces the potential of coexistence through an unavoidably reductive, particularistic framing of relationships and identities. Such acts are always regulative, in the sense that they bring a necessary definition to social interactions. Whilst they serve to enable sociality, they simultaneously limit it by foreclosing (at least temporarily) other potential forms of interaction. In identifying someone as a ‘claimant’, for example, all other possible relationships with that person are (temporarily, at least) subsumed by an interaction on the basis of that identity.

Given that the formal recognition offered by native title may be necessary to restore some wider meaning to Aboriginal customary interests, it is important to recognise that the ossifying effects of such recognition may be mitigated in other areas. The principal possibility for such mitigation inheres in the enactment of ‘rights and interests’ within the social life of local communities. If the formal recognition enacted within the ‘recognition space’ is necessarily dominated by a Western legal demand for certainty, based on a legalistic ‘ontology of determinacy’ (Smith 2003: 41, after Gaonkar 2002: 6), a more open style of recognition may nonetheless be maintained elsewhere in ongoing social interactions between Aborigines, local non-indigenes and others concerned with a particular area. This open style of recognition would not be overdetermined by fixed legal categories, but would rather subsume these categories within the complex field of ongoing social relations.

In this way the ‘openness’ required to achieve some measure of social justice for Aborigines may still be found in the context of native title, but only where the ongoing negotiation of the meaning of ‘rights and interests’ can take place in the interactions between native title holders and their consociates. This negotiation must therefore take place in the context of the wider community concerned with a particular area where native title has or will be determined, allowing for the establishment of relatively satisfactory coexistence between its members.

Social justice will thus never be brought about simply by a determination of native title. Instead, native title law can only impel an adjustment in the forms taken by local coexistence, which—in order to be both meaningful and relatively satisfactory for all members of a local community—must always exceed the ‘letter of the law’. Legal processes, in and of themselves, will always be unsuccessful in their attempts to produce social justice. The ‘thin simplifications’ (Scott 1998) that such determinations represent can only ever be meaningful in the context of ongoing social interactions, although they may exert powerful leverage within these interactions. Here law and justice are both distinct yet inseparable; justice itself may remain incalculable, but any aspiration towards justice nonetheless requires an act of calculation, in particular through the application of law (Derrida 2002: 257). If the enactment of the law aspires to the achievement of just outcomes, social justice—situated in the ‘open’ exposure of consociates to one another—is nonetheless never simply achieved or arrived at. Social justice inheres in a sufficient potential for relatively satisfactory coexistence between members of a given community, not in the ossified articulation of rights and interests.